i  ^' 


BRIEF  DEVELOPING 

TITLE  TO  PUBLIC 

LANDS 


FROM 


FUNDAMENTAL  SOURCES 


FILED  WITH 

CHAIRMAN  FEDERAL  RELATIONS  COMMITTEE 

LEGISLATURE  OF  STATE  OF  CALIFORNIA 


BY 

GEORGE  EDWARDS 

BERKELEY.  CAL. 


JANUARY,  I9I3 


Gazette  Publishing  Co.,  Berkeley,  Calif. 


Brief  Developing  Title  to   Public  Lands 

By 

GEO.    EDWARDS, 

Berkeley,  Cal. 

The  point  to  be  determined  by  this  brief  is  whether 
the  United  States  holds  the  public  lands  AS  OWNER, 
with  power  in  Congress  to  do  what  it  pleases  with  them ; 

or  whether  the  United  States  holds  the  lands  AS 
TRUSTEE  and  is  bound  by  definite  conditions  and 
limitations.  The  reader  should  critically  observe  the 
circumstances  and  the  gradual  development  of  the 
words  and  phrases,  which  finally  fixed  the  status  of  the 
public  lands,  in  the  settlement  with  Virginia,  in  the 
national  constitution,  and  in  the  ordinance  of  1787.  The 
context  of  the  word  "property"  also  should  be  noted. 
Congressional  citations  may  be  verified  and  amplified  by 
reference  to  the  proceedings  of  the  Continental  Con- 
gress, on  the  dates  given.  The  first  portion  of  this  brief 
contains  the  substance  of  the  original  documents  that 
formed  the  basis  of  the  holding  by  the  United  States  of 
public  lands. 

SOURCE    OF    PUBLIC    LANDS. 

The  United  States  secured  control  of  the  public  lands 
by  deeds  from  the  original  States.  These  deeds  con- 
veyed the  western  lands.  The  states  refused  to  convey 
to  the  United  States/  the  public  lands/included  within 
their  recognized  boundaries.  The  long  negotiations  be- 
tween Congress  and  the  several  states/over  the  public 
lands,  culminated  with  the  Virginia  settlement  and 
established  by  agreement/the  absolute  equality  of  each  l^ 

new  state  with  the  original  states. 


551289 


New  Hampshire,  Rhode  Island,  New  York,  Pennsyl- 
vania, Deleware,  Maryland,  within  their  recognized 
boundaries^  contained  unoccupied  former  crown  lands, 
or  unoccupied  proprietary  lands,  to  the  title  and  juris- 
diction of  which  they  had  succeeded.  The  treaty  of 
peace  with  Great  Britain  confirmed  title  to  the  former 
crown  lands. 

Pennsylvania  paid  the  Penn  heirs  for  their  title.  Con- 
necticut had  no  unoccupied  crown  lands,  within  its 
recognized  boundaries;  but  had  extensive  claims,  based 
on  an  original  colonial  charter,  to  what  were  then  known 
as  the  Wyoming  lands,  in  the  territory  claimed  by  Penn- 
sylvania; and  to  unoccupied  land  extending  west  from 
the  western  boundary  of  Pennsylvania  to  the  Missis- 
sippi River. 

Massachusetts,  New  York,  Virginia,  North  Carolina, 
South  Carolina,  and  Georgia,  in  addition  to  considerable 
areas  of  unoccupied  former  crown  lands  and  colonial 
proprietary  lands,  had  claims  to  unoccupied  western 
lands.  The  claims  of  Virginia,  Maryland,  Connecticut, 
and  Massachusetts  overlapped  in  the  territory  north 
west  of  the  Ohio  river;  the  lands  of  North  Carolina, 
South  Carolina  and  Georgia  were  farther  south. 

The  title  to  western  lands  of  New  York  rested  on 
treaties  with  Indians.  The  remaining  titles  rested  on 
charters  by  the  English  crown.  One  charter  to  Virginia 
conveyed  a  strip  of  land  400  miles  wide,  extending 
from  sea  to  sea,  which  was  interpreted  to  mean  from 
the  Atlantic  to  the  Pacific.  Virginia  also  had  the  right 
of  conquest  of  the  north  west  territory.  These  territo- 
rial claims  of  western  lands  were  indefinite  in  extent. 


ARTICLES    OF    CONFEDERATION. 

The  Articles  of  Confederation  placed  supreme  auth- 
ority in  Congress.    The  articles  contained  the  clause: 

Article  IX.  ''Provided,  also,  that  no  state  shall 
be  deprived  of  territory  for  the  benefit  of  the  United 
States," 

and  the  long  and  accrimonious  negotiations  by  Con- 
gress with  the  several  original  states  were  to  secure 
amendment  of  this  clause. 

Congressional  debate;  June  22,  1778,  "Article  IX, 
after  the  words  ''shall  be  deprived  of  territory  for  the 
benefit  of  the  United  States,"  insert  "the  United  States 
in  Congress  assembled  shall  have  the  power  to  appoint 
commissioners,  who  shall  be  authorized  and  empowered 
to  ascertain  and  restrict  the  boundaries  of  such  of  the 
confederated  states,  which  claim  to  extend  to  the  Missis- 
sippi or  South  Sea"  after  debate,  action  was  postponed 
till  tomorrow. 

June  23,  1778:  After  the  words  "for  the  benefit  of 
the  United  States"  add  "provided  nevertheless,  that  all 
lands  within  these  states,  'the  property'  of  which  before 
the  present  war  was  vested  in  the  crown  of  Great 
Britain,  or  out  of  which  revenues  for  quit  rents  arise, 
payable  to  said  crown,  shall  be  claimed,  taken  and  con- 
sidered, as  'the  property'  of  these  United  States,  and 
be  disposed  of  as  "the  property"  of  these  United  States, 
and  be  disposed  of  and  appropriated  by  Congress,  for  the 
benefit  of  the  whole  confederacy,  reserving,  however, 
to  the  states  within  whose  limits  such  crown  lands  may 
be,  the  entire  and  complete  jurisdiction  thereof/' 
Passed  in  negative. 


STATES  OPPOSING  VIRGINIA;  LANDS  SHOULD  BE  FOR  THE 
PEOPLE  OF  ALL  THE  STATES. 

June  25,  1778,  New  Jersey  claims:  The  boundaries 
of  the  several  states  should  be  fixed  definitely;  wishes 
to  ignore  the  proprietary  rights  of  some  states  to  the 
public  lands;  all  vacant  and  unpatented  crown  lands 
within  and  without  the  states  should  be  disposed  of  to 
defray  expense  of  the  war,  and  for  general  public  pur- 
poses; jurisdiction  of  lands  within  states  should  rest 
with  such  states,  but  "the  property"  should  be  in  the 
United  States;  states  without  public  lands  should  not 
be  left  to  sink  under  enormous  debt,  while  those  claim- 
ing public  lands,  by  its  sale,  can  easily  be  freed  from 
their  portion  of  the  public  debt. 

Jan.  23,  1779:  Deleware  insists  that  western  lands 
should  be  held  for  the  benefit  of  the  United  States  and 
not  for  the  benefit  of  states  claiming  title.  Maryland 
bitterly  resents  claim  of  Virginia  to  western  lands  and 
fears  the  superiority  of  wealth  and  power  in  Virginia  by 
sale  of  the  vast  western  territory;  questions  the  title  of 
Virginia;  intimates  that  Virginia  was  considering  the 
erection  of  a  state  to  the  west,  to  be  tributary  to  Virgi- 
nia; claims  that  western  lands  should  be  a  common 
"property,"  subject  to  be  parcelled  out  by  Congress, 
into  free,  convenient  and  independent  governments; 
instructs  delegates  not  to  agree  to  confederation  until 
terms  are  satisfactory. 

REMONSTRANCE   OF   VIRGINIA. 

Within  the  western  territory  claimed  by  Virginia  the 
Vandalia  company  had  planned  to  erect  a  colony:  There 


were  also  the  Indiana,  Illinois  and  Wabash  companies 
claiming  title  from  the  Indians.  They  sought  confirma- 
tion of  title  from  Congress.  The  aggression  of  these 
companies  and  the  demands  of  Maryland  were  met  by 
Virginia  by  a  Remonstrance,  passed  December  14,  1779, 
by  the  General  Assembly  of  Virginia,  and  presented  to 
Congress:  Advising  that  Virginia  had  passed  a  law  to 
prevent  settlements  within  her  territory,  but  desired  to 
promote  harmony  and  confidence  between  the  states; 
is  astonished  that  Congress  has  receivel  and  conten- 
anced  petitions  to  erect  separate  governments  from  the 
Vandalia  and  Indiana  companies,  in  defiance  of  the 
authority,  laws  asd  jurisdiction  of  Virginia;  if  Congress 
should  arrogate  to  themselves  a  right  of  adjudication, 
unwarranted  by  and  expressly  contrary  to  the  funda- 
mental principles  of  the  Confederation,  superseding  or 
controlling  the  internal  policy,  civil  regulations  and 
municipal  laws  of  Virginia,  or  any  state,  it  would  be  a 
violation  of  public  faith  and  of  the  sovereignty  of  such 
state.  The  United  States  hold  no  territory  but  in  right 
of  some  one  individiual  state,  whose  boundaries  are 
fixed  by  charters.  When  Virginia  acceded  to  union,  her 
sovereignty  and  jurisdiction,  within  her  own  territory, 
were  reserved  and  secured  to  her,  and  can  not  be  altered 
or  infringed  without  her  consent.  Virginia  has  already 
freely  offered  to  Congress,  without  cost,  lands  as  boun- 
ties to  troops  on  Continental  establishment,  subject  to 
distribution  by  Congress,  and  the  offer  still  holds.  But 
Virginia  does  remonstrate  and  protest  against  any  juris- 
diction or  right  of  adjudication  of  Congress,  upon  the 
petition  of  the  Vandalia  and  Indiana  companies,  or  on 


any  other  matter  or  thing  subversive  of  the  internal 
policy,  civil  government,  or  sovereignty  of  Virginia  or 
of  any  state. 

VIRGINIA  ASKED  TO   RECONSIDER  OPENING  LAND  OFFICE. 

October,  30,  1779,  Congress  recommended,  that  as 
it  appeared  that  the  opening  of  a  land  office  in  Virginia, 
for  the  purpose  of  locating  land,  unappropriated  at  the 
time  of  independence,  has  produced  much  uneasiness, 
disputes  and  controversy,  and  greatly  weakened  the 
United  States  by  the  emigration  of  inhabitants  to  parts 
remote  from  defense;  therefore  it  is  earnestly  recom- 
mended to  Virginia  to  reconsider  opening  of  the  land 
office;  and  it  is  recommended  to  Virginia  and  all  other 
states  in  like  circumstances,  to  forbear  selling  or  issuing 
warrants  for  such  unappropriated  lands,  or  granting  the 
same  during  the  present  war. 

NEW  YORK  READY  TO  CONVEY. 

April  1 , 1 780,  New  York  authorized  Congress  to  define 
the  western  boundaries  of  New  York;  declared  that  New 
York  was  ready  to  cede  or  relinquish  her  public  lands, 
either  with  the  jurisdiction  and  right  of  preemption  of 
the  soil,  or  the  right  of  preemption  only,  for  the  use  and 
benefit  of  such  of  the  United  States,  as  shall  become 
members  of  the  federal  alliance,  and  for  no  other  use  or 
purpose  whatever.  Said  lands  shall  be  disposed  of  in 
such  manner  only  as  Congress  shall  direct. 

CONGRESS   EVADES   CONTROVERSY   AND   RECOMMENDS 
TRANSFER. 

September  6,  1780,  Congress  considered  the  instruc- 
tions of  Maryland  regarding  the  Articles  of  Confedera- 


tion;  also  act  of  New  York,  on  same  subject;  also  re- 
monstrance of  Virginia.  Congress  decided  that  it  was 
unnecessary  to  examine  into  the  merits  or  policy  of  the 
general  assembly  of  Maryland;  or  of  the  remonstrance 
of  Virginia.  They  involved  questions  that  were  de- 
clined on  mature  consideration,  when  the  Articles  of 
Confederation  were  debated.  Nor  could  such  questions 
he  revived  with  any  prospect  of  conciliation.  It  ap- 
pears more  advisable  to  press  on  the  states,  which  can 
remove  the  embarrassments  respecting  the  western 
country,  a  liberal  surrender  of  a  portion  of  their  territo- 
rial claims,  since  they  cannot  be  preserved  entire,  with- 
out endangering  the  stability  of  the  general  confed- 
eracy; to  remind  them  how  indispensably  necessary  it 
is  to  establish  the  federal  union  on  a  fixed  and  perma- 
nent basis;  how  essential  to  public  credit  and  confidence 
to  support  our  army,  to  the  vigor  of  our  councils  and 
success  of  our  measures;  to  our  tranquility  at  home,  and 
our  reputation  abroad;  to  our  existence  as  a  free,  sover- 
eign and  independent  people,  Congress  asks  the  respec- 
tive legislatures  to  give  a  full  and  impartial  consideration 
to  the  subject;  especially  in  view  of  the  act  of  New  York 
which  is  calculated  to  accelerate  the  federal  alliance,  by 
removing,  as  far  as  depends  on  that  state,  the  impedi- 
ment arising  from  the  western  country.  That  this  re- 
port be  transmitted  to  the  legislatures  of  the  several 
states  with  the  earnest  recommendation  that  the  states, 
claiming  western  territory,  pass  such  laws  and  give 
their  delegates  in  Congress  such  powers,  as  may 
effectually  remove  the  only  obstacle  to  a  final  ratification 
of  the  Articles  of  Confederation. 


8 

CONGRESS     OFFERS     TO     ACCEPT     LANDS     UNDER     DEFINITE 
CONDITIONS. 

October  10,  1780,  Congress  resolved  that  the  lands 
which  may  be  ceded  to  the  United  States  by  any  partic- 
ular state,  pursuant  to  recommendation  of  September 
6,  1780, 

shall  be  disposed  of  for  the  common  benefit  of  the 
United  States:  and  be  settled  and  formed  into  dis- 
tinct republican  states,  which  shall  become  mem- 
bers of  the  federal  union,  and  have  the  SAME  rights 
to  sovereignty,  freedom  and  independence,  as  the 
other  states.  That  the  reeisonable  war  expenses  of 
any  state,  shall  be  reimbursed.  That  the  said  lands 
shall  be  granted  or  settled  at  such  times  and  under 
such  regulations  as  shall  hereafter  be  agreed  upon 
by  the  United  States  in  Congress  assembled,  or  any 
H'ine  or  more  of  them. 

COUNTER   TENDER  OF   VIRGINIA. 

The  general  Assembly  of  Virginia,  January  2,  1781, 
as  the  safety,  strength  and  happiness  of  United  States 
depended  on  ratification  of  Articles  of  Confederation,  re- 
solved to  cede  to  United  States  all  right,  title  and  claim 
to  the  lands  North  West  of  the  Ohio  river,  conditioned: 
1st:  That  the  territory  ceded  shall  be  laid  out  into  suit- 
able states;  that  the  states  so  formed  shall  be  distinct 
republican  states  and  be  admitted  members  of  the 
Union,  having  the  SAME  sovereignty,  freedom  and  in- 
dependence as  the  other  states.  2d :  That  Virginia  be 
fully  reimbursed  expense  of  conquest  North  West  of 
Ohio.  3d:  That  the  settlers  who  have  professed  them- 
selves citizens  of  Virginia  shall  have  their  titles  con- 
firmed and  be  given  military  protection.  4th:  That  Col. 
Clark  who  conquered  the  territory  be  given  for  self  and 
troops  150,000  acres.  5th:  That,  if  lands  South  East  of 


Ohio  reserved  for  troops  of  Virginia  are  insufficient, 
then  good  land  to  North  West  be  added  to  supply  defi- 
ciency. 6th:  That  adl  the  lands,  not  so  reserved  shall  be 
considered  a  common  fund  for  the  benefit  of  the  United 
States,  and  shall  be  faithfully  and  bona  fide  disposed  of 
for  that  purpose  and  for  no  other  use  or  purpose  what- 
ever. 7th :  That  all  purchases  or  deeds  from  Indians  to 
private  persons  be  declared  void.  8th:  That  all  the  re- 
maining territory  of  Virginia  between  Atlantic  and  the 
South  East  side  Ohio  be  guaranteed  to  Virginia  by 
United  States.  That  this  cession  of  Virginia  shall  be 
void  unless  all  the  states  ratify  the  Articles  of  Confeder- 
ation and  all  other  states  shall  also  cede  their  claims  to 
United  States. 

MARYLAND  OPPOSES  VIRGINIA. 

February  12,  1781,  Maryland,  which  held  no  charter 
to  western  lands,  authorized  delegates  to  subscribe  to 
Article  of  Confederation,  but  declined  to  relinquish  any 
right  she  might  have  with  the  other  United  States  in  the 
back  country;  but  claimed  the  same  as  fully  as  ever, 
relying  on  the  justice  of  the  several  states;  declared  that 
no  article  in  the  confederation  can  or  ought  to  bind  this 
or  any  other  state,  to  guarantee  any  extensive  claim  of 
any  particular  state  to  the  soil  of  said  back  lands,  or  any 
such  claim  of  jurisdiction  over  said  lands,  or  inhabitants 
thereof. 

DEED    OF    NEW    YORK. 

March  1st,  1781,  New  York  delegates  preparing  to 
deed  western  lands  to  United  States,  declared  that  in 
view  of  condition  set  up  by  the  legislature  of  Virginia 


10 

that  the  United  States  should  guarantee  her  bound- 
eries,  New  York  delegates  also  would  require  the 
United  States  to  guarantee  bounderies  of  New  York 
with  power  otherwise  in  people  of  New  York  to 
ratify  or  disapprove  of  conveyance.  Thereupon  they 
conveyed  title  of  New  York  to  western  lands  to 
United  States,  and  cede,  transfere  and  forever  relin- 
quish to  and  for  the  only  use  and  benefit  of  such  of  the 
states  as  are  or  shall  become  parties  to  the  Articles  of 
Confederation,  all  right,  title,  interest,  jurisdiction  and 
claim  to  said  lands;  to  be  granted,  disposed  of  and  ap- 
propriatedy  in  such  manner  only  as  Congress  shall  direct. 

VIRGINIA  ASSERTS  HER   RIGHTS. 

October  16,  1781,  the  delegates  of  Virginia,  as  com- 
mittee of  Congress  was  disposed  to  investigate  claims  of 
the  United  Illinois  and  Wabash  Companies,  of  the  In- 
diana Company,  as  well  as  claims  of  certain  individuals 
to  western  lands,  therefore  the  said  delegates  of  Virginia 
holding  that  no  claim  ought  to  be  received  adverse  to 
Virginia,  or  any  state;  because  if  the  lands,  to  which 
pretensions  are  made,  lie  within  the  limits  of  such  state, 
by  its  authority  alone  can  the  merits  of  their  claim  be 
enforced,  the  jurisdicion  of  Congress  in  territorial 
questions,  being  limited  to  an  adjustment  of  the  con- 
flicting claims  of  different  states.  If  the  lands  claimed 
lie  within  Virginia,  or  any  state.  Congress  are  interdicted 
from  cognizance.  Therefore  Virginia  requested  a  vote  on 
the  question:  Whether  it  was  the  intention  of  Congress 
to  authorize  the  committee  to  receive  claims  and  hear 
evidence  in  behalf  of  said  companies,   adverse  to  the 


H 

claims  of  Virginia,  New  York  or  Connecticut.    Vote  on 
previous  question  and  lost. 

VIRGINIA   REQUESTS  REPORT  OF  COMMITTEE  ON   LANDS. 
COMMITTEE  ADVISES   REJECTION   OF  TERMS   OF   VIRGINIA. 

May  1st,  1782,  Virginia  called  for  report  of  commit- 
tee on  the  cessions  of  New  York,  Virginia,  and  Connec- 
ticut; and  on  the  petitions  of  the  Indiana,  Vandalia, 
Illinois  and  Wabash  companies.  Accordingly,  the  com- 
mittee reported  that  New  York  and  Connecticut  had  laid 
before  the  committee  their  several  claims  to  lands,  with- 
in their  states:  that  Virginia  declined  any  elucidation 
of  her  claim,  either  to  the  lands  ceded  in  the  act  referred 
to  committee,  or  the  lands  requested  to  be  guaranteed  to 
Virginia  by  Congress:  but  delivered  to  the  committee 
the  written  paper  annexed. 

Having  examined  all  information,  the  committee  re- 
commended: 

That  Congress  accept  cession  of  New  York,  1st 
as  it  appeared  that  all  the  land  of  the  Six  Nations 
of  Indians  had  been  placed  by  these  tribes  under 
the  protection  of  England,  with  jurisdiction  resting 
in  New  York.  2d:  That  New  York  had  supported 
said  Six  Nations  with  blood  and  treasure  for  100 
years.  3d:  That  England  always  treated  the  terri- 
tory of  the  Six  Nations  as  appendant  to  New  York. 
4th:  That  Massachusetts,  Pennsylvania,  Maryland 
and  Virginia  have  by  their  public  acts  recognized 
the  Six  Nations  as  appendant  to  New  York.  5th: 
That  United  States  will  be  vested  with  the  jurisdic- 
tion of  this  whole  western  territory,  by  accepting 
the  cession. 

That  Congress  earnestly  recommend  to  Massa- 
chusetts and  Connecticut  to  release,  without  delay 
to  United  States,  all  claims  and  pretentions  to  the 


12 

western  territory,   without   any   conditions  or  re- 
strictions whatever. 

That  Congress  cannot  accept  the  cession  pro- 
posed by  Virginia,  consistently  with  the  interests 
and  sovereignty  of  the  United  States  and  the  duty 
they  owe  to  their  constituents;  for  the  following 
reasons:  1st:  It  appears  to  the  committee  that  all 
the  lands  claimed  by  Virginia  are  within  the  claims 
of  Massachusetts,  Connecticut  and  New  York,  as 
part  of  the  lands  of  the  Six  Nations.  2nd:  A  great 
part  of  the  lands  claimed  by  Virginia  and  requested 
to  be  guaranteed  by  Congress,  is  also  within  claims 
of  New  York.  3d:  A  large  part  of  these  lands  are 
west  of  the  boundary  of  Virginia,  as  established  by 
Great  Britain.  4th:  That  a  large  tract  of  said  land 
had  been  legally  sold,  under  the  government  of 
Great  Britain,  before  the  declaration  of  independ- 
ence, by  persons  claiming  title.  5th:  In  1763,  a 
large  part  of  this  territory  was  separated  and  ap- 
pointed as  a  distinct  government  and  colony  by 
Great  Britain,  with  the  knowledge  and  approval  of 
Virginia.  6th:  The  conditions  annexed  to  the 
cession  of  Virginia  are  incompatible  with  the  honor, 
interest  and  peace  of  United  States,  and  are  there- 
fore inadmissible. 

That  it  is  earnestly  recommended  to  Virginia  to 
reconsider  their  act  of  cession  and  by  a  proper  act 
cede  to  United  States  all  claims  and  pretensions  to 
the  western  lands,  free  from  any  conditions  or  re- 
strictions whatever. 

As  to  Indiana,  Vandalia,  Illinois  and  Wabash 
companies,  during  the  hearing  of  these  claims  Vir- 
ginia delegates  refused  to  attend  hearing.  Com- 
mittee believes  purchases  of  Indiana  company  were 
bona  fide,  for  a  valuable  consideration,  according  to 
transactions  with  Indians.  Therefore,  it  should  be 
confirmed,  provided  that  jurisdiction  be  given  to 
United  States.  It  further  appears  that  Vandalia 
was  promoted  at  great  expense  by  subjects  of  Great 
Britain,  who  were  enemies  of  United  States,  as  well 
as  by  citizens  of  the  United  States.  The  extensive 


13 

territory  was  to  be  erected  into  a  colony.  But  it  is 
incompatible  with  the  interests,  government  and 
policy  of  the  United  States  to  permit  such  extrav- 
agant grants  to  individual  citizens.  It,  therefore,  is 
recommended  that  the  United  States  reimburse  the 
expense  of  all,  who  are  citizens  of  the  United  States, 
provided  that  all  claims  to  said  land  are  released  to 
the  United  States,  payment  to  be  made  by  grants 
to  each  member  individually. 

It  is  recommended  that  the  petition  of  the  Illinois 
and  Wabash  companies  be  denied  as  being  irregular 
in  dealing  with  Indians;  are  indefinite  in  extent; 
that  the  Wabash  purchase  was  made  after  Congress 
had  appointed  an  agent  for  Indian  affairs;  that  the 
Six  Nations  claim  the  land,  in  opposition  to  the 
Indians  granting  it. 

It  is  recommended  that  Congress  declare  that  it 
alone  has  power  to  deal  with,  or  purchase  land 
from  Indians,  outside  the  bounds  of  the  several 
states.  That  no  citizen  of  the  United  States,  or  of 
any  state  should  purchase  unappropriated  lands 
from  the  Indians. 

It  is  recommended  that  Congress  permit  new 
settlements,  on  unappropriated  lands  to  be  erected 
into  a  new  state,  which  shall  make  good  all  reason- 
able engagements  to  the  officers  and  sildiers  of  the 
United  States:  That  the  bona  fide  settlers  shall  be 
confirmed  in  their  titles,  when  a  new  state  is  erected* 

It  is  recommended  that  Congress  agree  to  reim- 
burse to  each  state  all  reasonable  expense  of  war. 

It  is  recommended  that  Congress  shall  assert  no 
''property"  in  the  soil,  against  the  Indians,  except 
by  regular  purchase  and  treaty. 

RECOMMENDATIONS  NOT  APPROVED. 

This  detailed  report  of  the  committee  on  the  western 
lands  was  not  approved  by  Congress. 

LANDS  TO  PAY  PUBLIC  DEBT. 

September  6,  1782,  Congress  adopted  the  following 
resolutions:  If  states  claiming  "exclusive  property"  in 


14 

the  western  lands  will  make  cessions  to  United  States 
agreeable  to  the  recommendations  of  Congress  Septem- 
ber 6th  and  October  10th,  1780,  it  would  be  an  import- 
ant fund  for  the  discharge  of  the  national  debt.  That  the 
cessions  of  states,  conforming  to  these  recommendations 
be  accepted.  That  the  states,  making  cessions,  not  con- 
forming to  these  recommendations,  be  recommended 
to  reconsider  and  re-submit  them  to  Congress.  If  this 
recommendation  is  complied  with,  Congress  will  not  in- 
terfere with  the  determinations  of  particular  states,  re- 
garding private  property  in  lands  within  those  cessions. 

ATTACK  ON  VIRGINIA  RENEWED. 

September  13th,  1783,  Congress  resumed  consider- 
ation of  the  Virginia  cession.  Attack  on  claims  of  Virgin- 
ia to  western  lands  was  renewed  and  it  was  moved  that 
the  bounderies  of  the  several  states  be  determined;  that 
the  vast  territory  outside  these  limits  to  the  west  were  sub- 
ject to  .no  just  claim  of  any  state  and  should  be  consid- 
ered as  a  common  "property,"  subject  to  be  parcelled  out 
by  Congress  into  free,  convenient  and  independent  gov- 
ernments at  such  times  as  Congress  shall  direct:  and  that 
as  Maryland  declared  she  did  not  intend  to  relinquish 
any  right  or  interest  in  the  western  territory,  as  her 
membership  in  the  general  confederacy  established  her 
rights  to  the  western  lands,  and  that  no  state  can,  or 
ought  to,  exercise  any  sovereignty,  legislation  or  juris- 
diction there:  that  the  sovereignty  had  rested  in  Great 
Britain  and  this  had  been  transferred  to  the  United 
States  by  the  treaty  of  peace.  On  vote,  consideration 
was  postponed. 


15 

AMENDED    REPORT    OF    COMMITTEE    ON    VIRGINIA'S    TENDER; 
AS  APPROVED. 

Thereupon,  the  original  report,  as  amended,  was 
taken  up  for  consideration  by  Congress,  covering  the 
tender  of  Virginia,  by  her  legislatures  of  January 
2nd,  1781. 

The  report  sets  up  in  full  the  oflfer  of  Virginia 
and  the  committee  are  of  the  opinion  that  the  1st 
requirement  that  the  territory  should  be  laid  out 
into  distinct  republican  states,  having  the  SAME 
rights  of  sovereignty,  freedom  and  independence  as 
the  other  states  was  provided  for  in  the  tender  by 
Congress  October  10th,  1780:  That  the  2d  condi- 
tion of  Virginia  that  she  be  reimbursed  her  war  ex- 
penses in  conquering  the  western  territory,  should 
be  met,  in  addition  to  the  guarantees  of  the  con- 
gressional act  October  10,  1780,  by  the  selection  of 
commissioners  to  adjust  details:  That  the  3d  condi- 
tion requiring  the  confirmation  of  the  possession 
and  titles  of  settlers  be  approved:  That  the  4th, 
5th  and  6th  conditions  of  Virginia,  (4th  provision 
for  the  Virginia  troops  that  conquered  that  terri- 
tory; 5th,  allowing  additional  lands  to  regular 
troops,  of  Virginia,  if  the  land  South  East  of  Ohio 
proved  insufficient;  6th,  that  all  the  remaining  land 
should  be  considered  a  common  fund  for  the  use 
and  benefit  of  such  of  the  United  American  States, 
as  have  become  or  shall  become  members  of  the 
confederation,  and  should  be  faithfully  and  bona 
fide  disposed  of  for  that  purpose,  and  for  no  other 
use  or  purpose  whatever,)  were  reasonable  and 
should  be  agreed  to  by  Congress;  as  to  the  7th  con- 
dition of  Virginia,  that  all  purchases  and  deeds  from 
Indians  made  for  the  benefit  of  private  persons 
should  be  declared  void,  as  in  conflict  with  the 
charter  rights  of  Virginia,  the  committee  advised 
that  it  would  be  improper  for  Congress  to  declare 
these  purchases  absolutely  void  and  that  the  6th 
condition,  as  agreed  to  regarding  the  disposition  of 


16 

lands  was  sufficient;  as  to  the  last  condition  of  Vir- 
ginia, requiring  Congress  to  guarantee  to  Virginia 
the  remainder  of  her  territory,  it  had  been  policy  of 
Congress  to  avoid  going  into  conflicting  claims  be- 
tween different  states  and  to  ask  such  a  guarantee 
was  either  unnecessary  or  unreasonable. 

The  committee  viewing  the  whole  matter  be- 
tween Virginia  and  the  United  States,  recommended 
that,  if  Virginia  make  a  cession  conforming  to  this 
report  that  it  be  accepted. 

On  vote,  this  report  was  approved  by  Congress. 

A  NEW  STATE. 

October  14,  1783,  report  to  Congress  by  committee  on 
Indian  affairs  was  adopted  as  follows:  Whether  it  was 
not  wise  and  necessary  to  erect  in  the  western  territory 
a  distinct  government  as  well  as  to  do  justice  to  the  army 
of  the  United  States,  who  were  entitled  to  lands  as 
bounty;  also  to  accommodate  purchasers  and  settlers, 
and  that  a  plan  for  temporary  government  be  devised, 
until  the  inhabitants  were  able  to  form  a  permanent  con- 
stitution, as  citizens  of  a  free  sovereign  and  independ- 
ent state;  provided  said  constitution  shall  not  be  incom- 
patible with  republican  principles,  which  are  the  basis  of 
the  constitution  of  the  republican  states  of  the  union. 

THE    DEED   OF   VIRGINIA. 

March  1st,  1784,  moved  in  Congress  that  the  follow- 
ing deed  of  Virginia  be  accepted: 

To  all  who  shall  see  these  presents,  we  Thomas  Jef- 
ferson, Samuel  Hardy,  Arthur  Lee  and  James  Mon- 
roe, the  underwritten  delegates  for  the  common- 
wealth of  Virginia,  in  the  Congress  of  the  United 
States  of  America,  send  greeting: 


17 

Whereas,  the  general  assembly  of  the  common- 
wealth of  Virginia,  at  their  session  begun  on  the 
20th  day  of  October,  1783,  passed  an  act  entitled 
"an  act  to  authorize  the  delegates  of  this  state  in 
Congress,  to  convey  to  the  United  States,  in  Con- 
gress assembled,  all  the  right  of  this  common- 
wealth, to  the  territory  north  west  of  the  river 
Ohio,"  in  these  words  following,  to  wit: 

''Whereas  the  Congress  of  the  United  States 
did,  by  their  act  of  the  6th  day  of  September  in  the 
year  1780,  recommend  to  the  several  states  in  the 
union  having  claims  to  waste  and  unappropriated 
lands  in  the  western  country,  a  liberal  cession  to 
the  Unitel  States,  of  a  portion  of  their  respective 
claims,  for  the  benefit  of  the  union;  and  whereas 
this  commonwealth  did,  on  the  2d  day  of  January, 
in  the  year  1781,  yield  to  the  Congress  of  the 
United  States,  for  the  benefit  of  the  said  states,  all 
right,  title  and  claim,  which  the  said  common- 
wealth had  to  the  territory  to  the  northwest  of  the 
Ohio,  subject  to  the  conditions  annexed  to  the  said 
act  of  cession.  And  whereas  the  United  States,  in 
Co.ngress  assembled,  have,  by  their  act  of  the  13th 
of  September  last,  stipulated  the  terms  on  which 
they  agree  to  accept  the  cession  of  this  state, 
should  the  legislature  approve  thereof,  which 
terms,  although  they  do  not  come  fully  up  to  the 
propositions  of  this  commonwealth,  are  conceived 
on  the  whole,  to  approach  so  nearly  to  them,  as  to 
induce  the  state  to  accept  thereof,  in  full  confi- 
dence, that  Congress  will  in  justice  to  this  state, 
for  the  liberal  cession  she  hath  made,  earnestly 
press  on  the  other  states,  claiming  large  tracts  of 
the  waste  and  uncultivated  territory,  the  propriety 
of  making  cessions  equally  liberal,  for  the  com- 
mon benefit  and  support  of  the  union.  Be  it  enact- 
ed by  the  general  assembly,  that  it  shall  and  may 
be  lawful  for  the  delegates  of  this  state  to  the  Con- 
gress of  the  United  States,  or  such  of  them  as  shall 
be  assembled  in  Congress,  and  the  said  delegates, 
or  such  of  them  so  assembled,  are  fully  authorized 


18 

and  empowered,  for  and  in  behalf  of  this  state,  by 
proper  deeds  or  instruments  in  writing,  under 
their  hands  and  seals  to  convey,  transfer,  and  as- 
sign and  make  over  unto  the  United  States  in  Con- 
gress assembled,  for  the  benefit  of  the  said  states, 
all  right,  title  and  claim,  as  well  in  soil  as  jurisdic- 
tion, which  this  commonwealth  hath  to  the  terri- 
tory or  tract  of  country,  within  the  limits  of  the 
Virginia  charter,  situate,  lying  and  being  to  the 
north  west  of  the  river  Ohio,  subject  to  the  terms 
and  conditions  in  the  before  re-cited  act  of  the  1 3th 
day  of  September  last;  that  is  to  say,  upon  the  con- 
dition that  the  territory  so  ceded  shall  be  laid  out 
and  formed  into  states,  containing  a  suitable  extent 
of  territory,  not  less  than  100,  nor  more  than  l5o 
miles  square,  or  as  near  thereto  as  circumstances 
will  admit,  and  that  the  states  so  formed  shall  be 
distinct  republican  states,  and  admitted  members 
of  the  Federal  union;  having  the  SAME  rights  of 
sovereignty,  freedom  and  independence  as  the 
other  states.  That  the  necessary  and  reasonble  ex- 
pense of  this  state,  in  subduing  any  British  posts, 
or  in  maintaining  forts  and  garrisons  within  and 
for  the  defense,  or  in  acquiring  any  part  of  the  ter- 
ritory, so  ceded,  or  relinquished,  shall  be  fully  re- 
imbursed by  he  United  States;  and  that  one  com- 
missioner shall  be  appointed  by  Congress,  one  by 
this  commonwealth  and  another  by  these  two  com- 
missioners, who,  or  a  majority  of  them,  shall  be 
authorized  and  empowered  to  adjust  and  liquidate 
the  account  of  the  necessary  and  reasonable  ex- 
penses incurred  by  this  state,  which  they  shall 
judge  to  be  comprised  within  the  intent  and  mean- 
ing of  the  act  of  Congress,  of  the  10th  of  October, 
1780,  respecting  such  expenses.  That  the  French 
and  Canadian  inhabitants  and  other  settlers  of  the 
Kaskashies,  St.  Vincents  and  the  neighboring  vil- 
lages, who  have  proffered  themselves  citizens  of 
Virginia,  shall  have  their  possessions  and  titles  con- 
firmed to  them,  and  be  protected  in  the  enjoyment 
of  their  rights  and  liberties.    That  a  quantity  not 


19 

exceeding  150,000  acres  of  land  promised  by  this 
state,  shall  be  allowed  and  granted  to  the  then 
Colonel,  now  General  G.  R.  Clarke  and  to  the  of- 
ficers and  soldiers  of  his  regiment,  who  marched 
with  him  when  the  posts  of   Kaskaskiers  and  St. 
Vincents  were  reduced,  and  to  the  officers  and  sol- 
diers that  have  since  been  incorporated  into  said 
regiment,  to  be  laid  off  in  one  tract,  the  length  of 
which  not  to  exceed  double  the  breath,  in  such  place 
on  the  north  west  side  of  the  Ohio,  as  a  majority 
of  the  officers  shall  choose,  and  to  be   afterwards 
divided  among  the  said  officers  and  soldiers  in  due 
proportion,  according  to  the  laws  of  Virginia.  That 
in  case  the  good  lands  on  the  southeast  side  of  the 
Ohio,  upon  the  waters  of  the  Cumberland  river, 
and  between  the  Green  river  and  Tennessee  river, 
which  have  been  reserved  for  the  Virginia   troops 
upon  continental  establishment,  should,  from  the 
N.  Carolina  line,  bearing  in  further  upon  the  Cum- 
berland lands  than  was  expected,  prove  insufficient 
for  their  legal  bounties,  the  deficiency  should  be 
made  up  to  the  said  troops,  in  good  lands,  to  be 
laid  off  between  the   rivers  Scioto   and  the  Little 
Miami,  on  the  north  west  side  of  the  river  Ohio,  in 
such  proportions  as  have  been  engaged  to  them  by 
the  laws  of  Virginia.    That  all  the  lands  within  the 
territory  so  ceded  to  the  United  States,  and  not  re- 
served for  or   appropriated  to   any   of  the  before 
mentioned  purposes,  or,  disposed  of  in  bounties  to 
the  officers  and  soldiers  of   the   American  army, 
shall  be  considered  as  a  common  fund  for  the  bene- 
fit of  such  of  the  United  States,  as  have  become  or 
shall  become  members  if  the  confederation,  or  fed- 
eral alliance  of  the  said  states,  Virginia,  inclusive, 
according  to  their  usual  respective  proportions  in 
the  general  charge  and   expenditure,  and  shall  be 
faithfully  and  bona  fide   disposed   of  for  that  pur- 
pose and  for  no  other  other  use  or  purpose  what- 
ever.    Provided  that  the  trust   hereby   reposed  in 
the  delegates  of  this  state,  shall  not  be  executed, 
unless  three  of  them  at  least  are  present  in  Con- 
gress. 


20 

And  whereas  the  said  general  assembly  by  their 
resolution  of  June  6th,  1783,  had  constituted  and 
appointed  us,  the  said  Thomas  Jefferson,  Samuel 
Hardy,  Arthur  Lee  and  James  Monroe,  delegates 
to  represent  the  said  commonwealth  in  Congress 
for  one  year,  from  the  first  Monday  in  November, 
then  next  following,  which  resolution  remains  in 
full  force:  Now  therefore  know  ye,  that  we,  the 
said  Thomas  Jeflferson,  Samuel  Hardy,  Arthur  Lee, 
and  James  Monroe,  by  virtue  of  the  power  com- 
mitted to  us  by  the  act  of  the  said  general  assem- 
bly of  Virginia,  before  recited,  and  in  the  name  and 
for  and  in  behalf  of  the  said  commonwealth,  do  by 
these  presents  convey,  transfer  and  assign  and 
make  over  unto  the  United  States,  in  Congress  as- 
sembled, for  the  benefit  of  the  said  states,  Virginia 
inclusive,  all  right,  title  and  claim,  as  well  of  soil  as 
of  jurisdiction,  which  the  said  commonwealth  hath 
to  the  territory,  or  tract  of  country,  within  the 
limits  of  the  Virginia  charter,  situate,  lying  and  be- 
ing to  the  northwest  of  the  river  Ohio  to  and  for 
the  uses  and  purposes  and  on  the  conditions  of  the 
said  recited  act.  In  testimony  hereof,  we  have  here- 
unto subscribed  our  names  and  affixed  our  seals, 

in  Congress  the of 

in  the  year  of  our  Lord,  1 784,  and  of  the  independ- 
ence of  the  United  States,  the  eighth. 


VIRGINIA'S     DEED     SIGNED,     SEALED,      DELIVERED     AND     AC- 
CEPTED. 

Congress  thereupon ;  Resolved  that  the  United  States 
in  Congress  assembled  are  ready  to  receive  this  deed, 

whenever  the  delegates  of  Virginia  are  ready  to  execute 
the  same.  Passed  by  vote  in  affirmative. 

The  delegates  of  Virginia  then  proceeded  and  signed, 
sealed  and  delivered  the  said  deed.  Whereupon  Con- 
gress adopted  the  following  resolution:  That  delegates 


21 

of  the  commonwealth  of  Virginia,  having  executed  the 
deed ;  Resolved  that  the  same  be  recorded  and  enrolled 
among  the  acts  of  the  United  States  in  Congress  as- 
sembled. 

STATUS  OF  PUBLIC  LAND  SETTLED. 

The  transfer  of  the  Virginia  western  lands  ended  the 
long,  bitter  and  dangerous  controversy  over  the  public 
lands,  which  nearly  destroyed  the  Union.  A  number 
of  deeds,  from  other  states,  will  be  noted  in  cronolog- 
ical  order,  but  they  followed  as  a  result  of  this  settle- 
ment with  Virginia.  From  the  date  of  this  transfer,  up 
to  five  or  six  years  ago,  Congress  has  been  controlled  by 
this  agreement.  And  Congress  on  receiving  this  deed 
at  once  developed  plans  to  make  all  needful  rules  and 
regulations  for  faithfully  and  bona  fide  disposing  of  the 
public  territory,  in  harmony  with  the  rights  of  the 
United  States,  to  retain  the  profit  of  sale,  and  the  rights 
of  the  particular  future  states;  that  the  lands  would  be 
erected  into  states,  that  should  be  republican  and  on  a 
perfect  equality  with  the  original  states  in  sovereignty, 
freedom  and  independence,  and  for  no  other  use  or  pur- 
pose whatever. 

A  DEFINITE  CONTRACT  MADE. 

It  is  to  be  noted  carefully  that  this  transaction  between 
Virginia  and  the  United  States  has  all  the  elements  of  a 
definite  contract.  After  years  of  negotiations,  Con- 
gress, September  6th,  and  October  10,  1780,  made  a 
lender  to  the  states,  Virginia  included.  On  January 
2d,  1781,  the  legislature  of  Virginia  made  a  counter 
tender  of  the  terms  on  which  she  should  cede  her  lands. 
On  May  1st,  1782,  the  committee  of  Congress  recom- 


22 

mended  that  the  tender  of  Virginia  be  rejected  and  that 
Congress  ask  Virginia  to  make  the  transfer  free  from  all 
conditions  and  limitations,  which  Congress  refused  to 
do.  On  September  l3th,  1783,  Congress  made  a  modi- 
fied tender  to  Virginia.  And  March  1st,  1784,  Virginia, 
waiving  minor  details,  accepted  the  terms  of  Congress 
and  transferred  the  consideration,  her  lands,  which  Con* 
gress  formally  accepted  in  behalf  of  the  United  States. 
This  contract  as  a  definite  binding  agreement,  is  the 
substance  out  of  which  the  present  national  constitu- 
tion was  fashioned,  for  a  union  of  equal  states;  it  is  the 
foundation  on  which  our  nation  has  been  built. 

OWNERSHIP  OF  SOIL  AND  SOVEREIGNTY   INSEPERABLE. 

The  fundamental  thought  which  controlled  these  long 
negotiations  was  that,  in  order  to  erect  sovereign  states 
the  ownership  of  the  soil  must  pass  from  the  United 
States  to  the  new  state.  When  the  ownership  of  the 
soil,  covering  an  extensive  area,  rests  permanently  in  a 
sovereign  power,  the  full  political  sovereignty  will,  by 
irresistable  sequence,  finally  rest  there  also.  It  would 
have  been  an  invasion  of  the  sovereignty  of  the  original 
states  to  allow  the  United  States  to  acquire  the  public 
lands,  within  their  recognized  boundaries;  accordingly 
Congress  rejected  the  proposal  when  made  June  23, 
and  June  25,  1778,  and  January  23rd,  1779. 

EQUALITY  OF  STATES. 

The  making  of  this  contract  with  Virginia,  definitely 
established  the  equality  of  each  new  state,  with  the 
original  states.  The  perfect  equality  of  the  states  rests 
on  the  transfer  of  the  public  lands  to  the  United  States; 


23 

and  their  transfer  by  the  United  States  to  the  jurisdic- 
ion,  taxing  power,  eminent  domain  and  sovereignty  of 
the  states  where  they  lie. 

ORDINANCE  OF  1784. 

During  the  month  following  receipt  of  the  deed  of 
Virginia,  Congress  commenced  the  work  of  outlining 
rules  and  regulations  for  bona  fide  disposing  of  the  pub- 
lic lands,  April  20  and  21,  1784,  and  erecting  states  on 
them.  And  April  23rd,  1784,  the  first  ordinance  relating 
to  the  western  territory,  formulated  by  Mr.  Jefferson  of 
Virginia,  was  adoped:  The  land  should  be  offered  for 
sale  and  divided  into  distinct  states;  the  settlers  should 
erect  a  temporary  government,  taking  the  constitution 
and  laws  of  one  of  the  original  states;  when  20,000  in- 
habitants are  reached,  they  may  erect  a  permanent  gov- 
ernment; these  governments  must  be;  1st,  permanent 
members  of  the  United  States;  2d,  shall  be  subject  to 
the  Articles  of  Confederation  in  the  same  manner  as  the 
original  states  and  to  the  acts  and  ordinances  of  the 
United  States;  3d,  shall  in  no  case  interfere  with  the 
primary  disposal  of  the  soil  by  the  United  States,  nor 
with  the  ordinances  and  regulations  which  Congress 
may  find  necessary  for  securing  title  to  bona  fide  pur- 
chasers; 4th,  shall  bear  their  share  of  the  public  debt; 
5th,  no  tax  shall  be  imposed  on  lands,  "the  property*' 
of  the  United  States;  governments  shall  be  republican; 
7th,  lands  of  non-resident  proprietors  shall  not  be  taxed 
higher  than  those  of  residents,  before  adm.ission  to 
United  States;  when  population  is  equal  to  the  smallest 
original  states,  shall  be  admitted  to   Union,  on  equal 


24 

footing  with  the  original  states;  while  under  temporary 
government,  shall  keep  a  member  in  Congress,  with 
right  of  debating,  but  no  vote. 

COMPACT   A    FUNDAMENTAL    CONSTITUTION 

These  preceeding  articles  shall  be  formed  into  a 
charter  of  compact;  shall  be  duly  executed  by  the  presi- 
dent of  the  United  States  in  Congress  assembled,  under 

his  hand  and  the  seal  of  the  United  States;  shall  be  pro- 
mulgated; and  shall  stand  as  fundamental  constitutions 
between  the  thirteen  original  states  and  each  of  the  new 
states  now  newly  described,  unalterable,  from  the  date 
of  the  sale  of  any  part  of  the  territory  of  such  state, 
pursuant  to  this  resolve,  but  by  the  joint  consent  of  the 
United  States  in  Congress  assembled  and  of  the  p2irtic- 
ular  state  within  which  such  alteration  is  propsed  to  be 
made. 

PLANNING    SURVEYS. 

May  28,  1784,  Congress  considered  a  detailed  plan, 
of  its  rules  and  regulations  for  disposing  of  the  public 
lands,  going  into  surveys  and  the  offices  necessary  to 
mark  out  the  lands  and  conduct  sales.  On  vote  this 
plan  was  defeated.  These  details  occupied  a  large 
amount  of  time  in  Congress  during  April,  May  and 
June,  1785,  also  during  May  and  June,  1786,  and  were 
brought  to  a  working  basis. 

DEEDS    OF    MASSACHUSETTS    AND    CONNECTICUT. 

April  19th,  1785,  Congress  accepted  the  deed  of  Mass- 
achusettes  of  a  strip  70  or  80  miles  wide  extending  to 
the  Mississippi  river.  This  deed  was  conditioned  by  the 
limitations  that  the  lands  were, 


25 

"to  be  disposed  of  for  the  common  benefit  of  the 
United  States,"  "agreeably  to  a  resolve  of  Con- 
gress of  October  10,  1780,"  and  conveyed  both 
soil  and  jurisdiction. 

May  20,  1785,  Congress  debated  a  method  of  dispos- 
ing of  western  lands;  also  invited  North  Carolina  to 
deed  her  lands,  which  lay  south  of  the  Virginia  lands. 
May  25,  1786,  Congress  debated  getting  claim  of  Con- 
necticut in  Virginia  territory.  July  7th,  1786,  Congress 
asked  Virginia  to  consent  to  five  states  being  erected  in 
western  territory,  instead  of  three. 

September  14,  1786,  Connecticut  made  her  first  deed 
to  Congress  of  her  western  lands;  and  April  28,  1800, 
deeded  to  Congress  her  jurisdiction  within  the  ''Western 
Reserve."  The  deeds  of  Connecticut  were  free  from  all 
limitations  and  conditions. 

AMENDMENT    OF    CONSTITUTION.   • 

The  articles  of  confederation  provided  for  amend- 
ment as  follows : 

Article  XIII.  The  Articles  of  this  Confederation 
shall  be  insoluably  observed  by  every  state,  and 
the  Union  shall  be  perpetual;  nor  shall  any  alter- 
ation at  any  time  hereafter  be  made  in  any  of  them; 
unless  such  alteration  be  agreed  to  in  a  Congress  of 
the  United  States,  and  be  afterwards  confirmed  by 
the  signitures  of  every  state. 

The  Articles  of  Confederation  being  found  defective, 
Virginia  took  the  lead  in  urging  on  the  United  States  a 
convention  to  amend  the  constitution.  Congress  yield- 
ing to  strong  pressure,  issued  a  call  February  21,  1787, 
for  a  constitutional  convention,  which  met  in  Philadel- 
phia, May  14,  1787,  and  opened  for  business  May  28th, 


26 

1787.  Congress  also  was  in  session  in  Philadelphia  at 
the  same  time,  and  prominent  men  were  members  of 
both  bodies. 

ORDINANCE    OF    1787. 

July  13th,  1787,  Congress  finding  that  the  ordinance 
of  April  23,  1784,  which  was  the  first  general  body  of 
rules  and  regulations  necessary  for  bona  fide  disposing 
of  the  public  lands,  required  amendment,  repealed  the 
original  ordinance  and  adopted  the  famous  ordinance  of 
1787,  which  ever  after  remained  the  fundamental 
charter  for  the  government  of  territories  and  the  erection 
of  new  states.  This  ordinance  consisted  of  two  parts: 
The  first  part  related  to  the  transient  organization  of  the 
territory.  The  second  part  was  intended  to  last  as  long 
as  the  United  States  should  last,  being  a  declaration  of 
fundamental  principles.  It  provided  for  a  temporary 
government;  for  the  descent  of  property;  the  appointing 
of  officers  by  Congress;  provision  for  temporary  laws; 
the  organization  of  a  legislature;  subdivision  into  coun- 
ties and  townships;  election  of  a  delegate  to  Congress. 

The  second  part  of  the  ordinance  of  1787  provided: 
For  extending  the  fundamental  principles  of  civil  and 
religious  liberty;  to  fix  and  establish  those  principles  as 
the  basis  of  all  laws,  constitutions  and  governments, 
which  forever  hereafter  shall  be  found  in  the  said  ter- 
ritory; to  provide  for  establishing  permanent  govern- 
ments and  for  their  admission  to  a  share  in  the  federal 
councils  on  an  equal  footing  with  the  original  states; 


27 

CONSENT  OF  STATES  REQUIRED  FOR  ALTERATIONS. 

that  it  is  hereby  ordained  and  declared  that  the  follow- 
ing articles  shall  be  considered  as  articles  of  compact  be- 
tween the  original  states,  and  the  people  and  states  of 
the  said  territory,  and  forever  remain  unalterable,  unless 
by  common  consent.  Article  1st,  religious  freedom; 
Article  2d,  benefit  of  habeas  corpus,  representation  in 
legislature,  right  of  bail  except  for  capital  offense, 
no  cruel  or  unusual  punishment,  no  man  deprived  of 
liberty  but  by  judgment  of  his  peers  or  the  law  of  the 
land,  compensation  for  person  and  property  taken  for 
public  purpose,  contracts  shall  be  maintained;  Article 
3d,  religion,  morality  and  schools  shall  be  encouraged, 
good  faith  to  Indians;  Article  4th,  the  said  territory  and 
states  organized  out  of  them  shall  forever  remain  a  part 
of  the  United  States,  the  inhabitants  shall  pay  their  pro- 
portion of  the  federal  debt,  which  shall  be  by  taxes 
levied  by  their  legislatures; 

PRIMARY     DISPOSAL    OF    SOIL     IN     UNITED    STATES. 

that  the  legislatures  of  those  districts  shall  never  inter- 
fere with  the  primary  disposal  of  the  soil  by  the  United 
States  in  Congress  assembled,  nor  with  any  regulations 
Congress  may  find  necessary  for  securing  the  titles  in 
such  soil  to  bona  fide  purchasers,  no  tax  shall  be  im- 
posed on  the  lands  "the  property"  of  the  United  States, 
in  no  case  shall  non-resident  proprietors  be  taxed  higher 
than  residents; 

CONTROL  OF  NAVIGABLE  STREAMS 

that  the  navigable  waters  leading  into  the  Mississippi 
and  St.  Lawrence  shall  be  common  highways  and  for- 


28 

ever  free  both  to  the  inhabitants  of  the  territory  and  of 
the  United  States  and  of  the  states  that  may  be  admitted 
to  the  Union. 

FORMATION   OF  NEW  STATES. 

Article  5th.  There  shall  be  formed  in  said  territory 
not  less  than  three  nor  more  than  five  states,  the  boun- 
daries to  be  defined  as  soon  as  Virginia  shall  alter  her 
act  of  cession  and  consent  thereto;  said  states  shall  be 
admitted  to  the  Union  on  an  equal  footing  in  all  respects 
whatever  and  shall  be  at  liberty  to  form  a  permanent 
constitution  and  state  government,  provided  the  consti- 
tution and  government  as  formed  shall  be  republican. 
Article  6th.  There  shall  be  no  slavery,  but  slaves  escap- 
ing from  an  original  state  may  be  reclaimed. 

CONSTITUTIONAL    CONVENTIOI^. 

From  May  28,  to  September  30,  1787,  the  constitu- 
tional convention  continued  its  deliberations,  covering 
the  same  interval  during  which  Congress  had  debated 
and  adopted  the  ordinance  of  July  l3th,  1787.  Virginia 
submitted  an  outline  for  remodeling  the  constitution 
and  this  was  the  foundation  that  was  built  upon,  in  the 
convention.  June  5th,  1787,  in  convention  was  consid- 
ered the  proposition  *'for  guaranteeing  to  states  repub- 
lican government,  and  territory,"  but  was  postponed. 
The  territory  referred  to  being  primarily  the  territory 
within  the  recognized  boundaries  of  the  original  states. 
The  delegates  were  mainly  engrossed  with  the  many 
difficulties  that  had  arisen  between  the  original  states. 
June  11,    1787,  the  convention  again  considered  the 


29 

above  and  amended  to  ''that  a  Republican  constitution 
and  its  existing  laws  ought  to  be  guaranteed  to  each 
state  of  the  United  States."  On  July  11th,  1787,  Ran- 
dolph of  Virginia  in  convention  declared  that  "Congress 
had  pledged  the  public  faith  to  the  new  states,  that  they 
shall  be  admitted  on  equal  terms.  They  never  would  or 
ought  to  accede  on  any  other."  This  declaration  met 
with  no  dissent  whatever  in  the  convention.  July  26th, 
1787,  Mr.  Pickney  disliked  the  exclusion  of  the  public 
debtors.  It  went  too  far.  It  would  exclude  persons 
who  should  purchase  western  territory  and  might  be  an 
obstacle  to  the  sale  of  the  latter. 

DEVELOPMENT  OF  CLAUSE  RELATING  TO  PUBLIC  LANDS. 

August  18th,  1787,  Mr.  Madison  of  Virginia  submit- 
ted for  the  committee  of  detail,  the  following  powers 
as  proper  to  be  added  to  those  of  the  general  legislature: 

"To  dispose  of  the  unappropriated  lands  of  the 
United  States."  "To  institute  temporary  govern- 
ments for  new  states  arising  therein/' 

This  was  referred  unanimously  to  the  committee  of 
detail.    August  30,  1787,  Mr.  Carrol  moved  that: 

"Nothing  in  this  constitution  shall  be  construed  to 
alter  the  claims  of  the  United  States  or  of  the  indi- 
vidual states  to  the  western  territory,  but  all  such 
claims  be  examined  into  and  decided  upon  by  the 
Supreme  Court  of  the  United  States." 

Mr.  Morris  moved  to  .postpone  this  in  order  to  take 
up  the  following: 

"The  Legislature  shall  have  power  to  dispose  of 
and  make  all  needful  rules  and  regulations  respect- 
ing the  territory  and  other  property  belonging  to 


30 

the  United  States;  and  nothing  in  this  constitution 
contained,  shall  be  so  construed  as  to  prejudice  any 
claims  of  the  United  States  or  of  any  particular 
state." 

On  vote  this  construction  was  agreed  to  in  the  con- 
vention, Maryland  alone  voting  in  negative. 

CONSTITUTION    SUBMITTED    TO    CONGRESS. 

The  new,  or  present,  constitution  was  completed  by 
the  convention  and  submitted  September  20,  1787,  to 
Congress  for  approval.  Amendments  were  proposed  in 
Congress  but  voted  down  by  Virginia  and  the  great  maj- 
ority,and  September  28,  1787,  Congress  submitted  the 
constitution  to  the  legislatures  of  the  several  states  for 
adoption. 

DEED  OF  SOUTH   CAROLINA. 

South  Carolina,  August  9th,  1787,  deeded  to  Con- 
gress her  strip  of  land  12  to  14  miles  wide,  extending  to 
the  Mississippi  river.  The  deed  conveyed  both  soil  and 
jurisdiction  and  was  free  from  all  limitations  or  condi- 
tions. 

ORDINANCE   1787   REAFFIRMED. 

The  ordinance,  July  I3th,  1787,  containing  the  fund- 
amental rules  and  regulations  for  bona  fide  disposing  of 
the  western  territory,  required  that  the  officers  for  tem- 
porary government  should  be  appointed  by  Congress. 
The  new  constitution  required  that  they  should  be 
nominated  by  the  President  and  approved  by  the  Senate. 
Accordingly,  August  7,  1789,  after  the  new  constitution 
was  adopted,  Congress  amended  this  ordinance  in  this 


31 

respect,  and  re-enacted  it,  thus  completely  harmonizing 
and  unifying  all  that  had  been  done  regarding  the  public 
landsy  by  the  several  states,  by  Congress,  and  by  the 
constitutional  convention,  making  it  one  coherent  tran- 
saction. 

DEED    OF    NORTH    CAROLINA. 

After  the  present  constitution  was  adopted,  North 
Carolina,  February  25,  1790,  presented  her  deed  to  Con- 
gress comprising  the  lands,  from  which  the  State  of 
Tennessee  was  created.  The  deed  recited  that  as  Con- 
gress had  urged  cession  of  territory  to  extinguish 
debts  and  estblish  harmony,  therefore  North  Carolina 
conveyed  lands  to  United  States.   The  deed  provided: 

All  lands  ceded  and  not  apportioned  in  bounty  to 
soldiers,  shall  be  considered  as  a  common  fund  for 
the  use  and  benefit  of  United  States,  (N.  Carolina 
inclusive)  and  shall  be  faithfully  disposed  of  for 
that  purpose  and  for  no  other  use  or  purpose  what- 
ever. The  territory  so  ceded  shall  be  laid  out  and 
formed  into  a  state  or  states,  with  all  the  benefits 
to  its  inhabitants,  set  forth  in  ordinance  of  1787. 

DEED     OF     GEORGIA. 

Georgia  was  the  last  of  the  seven  states,  which  ceded 
western  territory.  April  24th,  1802,  Georgia  ceded  to 
United  States  the  territory,  extending  westward  from 
her  present  boundary  to  the  Mississippi  river,  excepting 
the  small  claim  of  South  Carolina  on  the  north.  The  deed 
conveyed  both  soil  and  jurisdiction,  conditioned  that 
United  States  pay  Georgia  $1,250,000  to  cover  her  ex- 
penses. That  a  land  office  should  be  opened  for  sale  of 
the  lands  within  twelve  months. 


32 

All  lands  ceded  shall  be  considered  sis  a  common 
fund  for  the  use  and  benefit  of  United  States 
(Georgia  inclusive)  and  shall  be  faithfully  disposed 
of  for  that  purpose  and  for  no  other  use  or  purpose 
whatever.  This  territory  shall  be  formed  into  a 
state  and  admitted  to  the  Union,  on  the  same  condi- 
tions and  restrictions  and  with  the  same  privileges, 
as  is  provided  in  the  ordinance  of  July  13th,  1787, 
excepting  as  to  slavery. 

It  should  be  noted  that  of  all  the  states  making  deeds 
to  the  United  States  to  the  western  territory,  Connecti- 
cut and  South  Carolina  alone,  conveyed  without  limit- 
ations and  conditions. 

The  foregoing  contains  the  substance  of  all  trans- 
actions establishing  the  status  of  the  public  lands.  We 
now  turn  to  consider  the  logical  deductions  from  the 
above  premises. 

THE     WORD     "PROPERTY." 

The  most  critical  study  should  be  given  to  the  use  of 
the  word  "property",  as  found  in  the  Constitution  and 
quoted  below;  its  relation  to  the  surrounding  context; 
and  its  relatioon  to  the  entire  transaction  by  which 
the  United  States  secured  control  of  the  public  lands, 
by  which  the  permanent  status  of  the  public  lands 
was  fixed.  Upon  the  interpretation  of  this  word,  Kan- 
sas v.  Colorado,  206  U.  S.  88-89,  1907,  the  U.  S. 
Supremt  Court  rests  its  theory  concerning  the  public 
lands  and  on  this  interpretation  is  based  the  theory  of 
the  permasent  vast  reserves  which  in  California  alone, 
exceed  in  area  the  combined  territory  of  New  Hamp- 
shire,   Vermont,  Massachusetts,    Connecticut,     Rhode 


33 

Island,  New  Jersey  and  Maryland;  and  which  in  all  the 
states  exceed  the  area  of  France  or  of  Germany. 

The  court,  in  this  case,  recites  the  clause  in  the  nation- 
al constitution  relating  to  the  public  lands: 

"The  Congress  shall  have  power  to  dispose  of  and 
make  all  needful  rules  and  regulations,  respecting 
the  territory  and  other  property,  belonging  to  the 
United  States;  and  nothing  in  this  constitution  shall 
be  so  construed  as  to  prejudice  any  claims  of  the 
United  States,  or  of  any  particular  state." 

The  court  then  declares:  "The  full  scope  of  this 
paragraph  has  never  been  definitely  determined. 
Primarily,  at  least  it  is  a  grant  of  power  to  the 
United  States  of  control  over  its  property.  That  is 
implied  by  the  words  'territory  and  other  pro- 
perty.' " 

It  will  be  seen  that  the  word  "property'*   is  used  in 

precisely  the  same  sense  in  the  ordinance  of  April  23, 

1784,  "No  tax  shall  be  imposed  on  lands  *the  property* 

of  the  United  States;"  in  the  ordinance  of  July  13th, 

1787,  "No  tax  shall  be  imposed  on  lands  *the  property' 

of  the  United  States;"  and  in  the  national  constitution 

"the  territory  and  other  'property'   belonging  to  the 

United  States."    Following  the  usage  thus  established, 

the  public  lands  were  at  once  called  the  lands  of  the 

United  States,  and  continued  to  be  so  called  for  sixty 

years. 

POLLARDS  LESSEE  v.  HAGON. 

In  1845,  a  case.  Pollards  Lessee  v.  Hagon,  3  How.  212, 
came  before  the  United  States  Supreme  Court,  and  re- 
sulted in  a  luminous  decision,  disclosing  a  comprehen- 
sive knowledge  on  the  part  of  the  court  of  the  transac- 
tion by  which  the  United  States  secured  control  of  the 


34 

public  lands  and  by  which  the  perfect  equality  of  the 
states  was  established.  The  court  declared  that  the 
transaction  between  the  United  States  and  Virginia  and 
Georgia  and  the  Louisiana  Purchase  constituted  a  con- 
tract and  created  a  trust,  under  which  the  United  States 
secured  control  of  the  public  lands  to  pay  the  public 
debts,  by  bona  fide  disposing  of  them  in  order  that  new 
states  might  be  erected  which  should  be  equal  in  every 
respect  to  the  original  states;  that  the  United  States 
holds  the  public  lands  for  temporary  purposes  only  and 
in  trust  for  the  states  where  they  lie; 

STATES  NOT  EQUAL  UNTIL  LANDS  TRANSFERRED. 

that  until  the  lands  were  disposed  of  by  the  United 
States,  the  new  state  was  not  on  a  footing  of  equality 
with  the  original  states; 

TIDE     LANDS. 

as  the  original  states  owned  the  tide  lands,  within 
their  borders,  each  new  state  becomes  owner  of  its  tide 
lands  as  soon  as  it  enters  the  Union,  because  the  new 
state  is  on  an  equality  with  the  original  states  in  every 
respect  whatever; 

CLAUSE  TRANSFERRING   LANDS  TO   UNITED  STATES. 

as  to  the  conditions  inserted  in  the  acts  admitting 
new  states  to  the  Union,  that  these  states  "disclaim  all 
right  and  title  to  the  waste  and  unappropriated  lands 
lying  wihin  said  territory;  and  that  the  same  shall  re- 
main at  the  sole  and  entire  disposition  of  the  United 
States,"  this  is  not  a  contract  between  the  parties,  but  is 


35 


binding  in  law.  It  amounts  to  nothing  more  than  giving 
to  Congress  the  power  to  make  all  necessary  rules  and 
regulations  for  disposing  of  the  public  lands. 


NO  POWER  TO  CREATE  UNEQUAL  STATES. 

Neither  the  United  States  nor  any  state  has  the  power 
to  do  any  act  or  pass  any  law  which  will  create  inequal- 
ity between  the  states  and  any  attempt  on  the  part  of 
either  to  do  so  is   void  and  of  no  effect;  ab  enitio.     39 

Fed.  730;  9  Pet.  224;  15  Pet.  449;  104  U.  S.  621;  146 
U.  S.  387;  152  U.  S.  387;  164  U.  S.  240;  168  U.  S. 
349;  176  U.  S.  83,  87;  187,  U.  S.  479,  483;  190  U.  S. 
508,  519;  198,  U.  S.  371;  198  Fed.  539. 


A     LEADING     CASE. 


The  part  of  the  decision  in  Pollards  Lessee  v.  Hogan 
which  relates  to  tide  lands  has  been  followed  ever  since. 
It  has  had  frequent  application  and  the  courts  have  uni- 
formly been  guided  by  it.  But  the  other  part  of  this 
great  leading  case  has  had  no  application,  until  the  pre- 
sent, because  Congress  has  been  working  in  harmony 
with  the  basic  trust  and  disposing  of  the  public  lands, 
and  allowing  them  to  pass  to  the  states.  And  having  no 
applicatio^n,  it  has  been  forgotten,  together  with  the 
basic  facts  which  constituted  the  title  to  he  public  lands. 
But  now  that  unequal  states  are  being  created,  its  enun- 
ciation of  fundamental  principles  must  be  studied  anew. 
I'he  proposition  that  tide  lands  are  the  property  of  the 
state,  which  has  been  so  firmly  established  by  the  courts, 
can  not  be  maintained  in  the  future,  if  the  other  part  of 


36 

Pollards  Lessee  v.  Hagon,  relating  to  the  upland  is  de- 
nied, for  both  rest  on  the  same  foundation,  on  the  per- 
fect equality  of  the  states. 

EQUALITY     OF     STATES. 

Whether  the  equality  of  each  state  with  the  others, 
can  not  be  changed  by  any  act  of  the  United  States,  or 
of  any  state,  as  is  held  by  the  United  States  Supreme 
Court  and  which  seems  the  sounder  view,  or  if  unequal 
states  may  be  created  by  agreement  between  the  United 
States  and  any  particular  state,  as  might  be  suggested 
by  the  ordinances  April  23,  1784,  and  July  l3th,  1787, 
in  either  event  the  United  States  alone  has  no  power  to 
create  unequal  states,  by  executive  act,  by  law  of  Con- 
gress, or  by  judicial  interpretation  of  those  laws,  and  all 
such  attempts  are  void.   198  Fed.  539. 

POLLARDS   LESSEE  V.   HAGON    REAFFIRMED. 

On  May  29,  1911,  the  U.  S.  Supreme  Court,  in 
Coyle  V.  Oklahoma,  221  U.  S.  559,  reaffirmed  the  per- 
fect equality  of  the  states,  in  their  relation  to  the  nation, 
and  discusses  at  length  the  meaning  of  this  equality.  It 
quotes  Pollards  Lessee  v.  Hagon  in  detail  and  reaffirms 
every  point  touched  upon.  This  decision  will  be  of  the 
greatest  assistance  when  the  fundamental  relation  of 
the  status  of  the  public  land  to  the  equality  of  the  states 
is  in  issue  before  the  Supreme  Court. 

COURT      DECISIONS     CONTRADICTORY. 

There  are  two  series  of  decisions  by  the  U.  S. 
Supreme  Court.  One  series,  unbroken  from  the  foun- 
dation of  our  nation  up  to  the  present  time,  maintains 


37 

the  equality  of  all  the  newer  states,  with  the  original 
states.  The  second  is  a  modern  series,  and  holds  that 
the  United  States  owns  the  public  lands.  These  two 
series  of  decisions  are  simply  contradictory  interms,  one 
with  the  other.  There  is  no  middle  ground."'"if'-t)ne 
series  is  true,  the  other  series  is  false.  If  one  series 
stands,  the  other  series  must  fall.  If  the  states  are  to  re- 
main equal,  the  public  lands  must  be  transferred  to  the 
states  where  they  lie.  If  the  United  States  owns  the  pub- 
lic lands,  and  holds  them  permanently,  the  reserve  states 
are  automatically  reduced  to  subordinate  and  unequal 
states,  and  our  present  form  of  state  and  national  gov- 
ernment is  undermined  and  ready  to  fall. 

INTERPRETATION   OF   CONSTITUTION. 

In  view  of  the  course  of  the  development  of  the  title  to 
the  public  lands,  the  contracts  entered  into  and  the 
trusts  undertaken  by  the  United  States,  it  is  obvious 
that,  in  the  clause  of  the  national  constitution  relating  to 
the  public  lands,  "property"  means  a  limited  tenure 
only,  subject  to  these  trusts  which  the  United  States 
bound  itself  to  perform. 

CLAIMS  OF  THE  UNITED  STATES. 

"Claims  of  the  United  States"  in  the  same  clause 
of  the  Constitution  as  the  word  ''property"  means  the 
right  of  the  United  States  to  control  the  public  lands,  so 
long  as  it  bona  fide  disposes  of  them;  that  the  lands  shall 
be  free  from  taxation,  during  this  temporary  holding; 
and  that  the  profits  of  sale  belong  to  the  United  States. 


38 

CLAIMS  OF  ANY  PARTICULAR  STATE. 

"Claims  ...  of  any  particular  state"  also  has  a  com- 
plex meaning,  embracing  the  terms  of  the  transaction 
by  which  the  public  lands  were  acquired.  It  means, 
that  the  public  lands,  within  the  recognized  boundaries 
of  the  original  states  should  not  be  interfered  with  by 
the  United  States;  that  the  claims  of  states,  to  western 
lands,  which  they  had  not  transferred  at  the  date  of  the 
national  constitution,  should  be  respected;  that  the  pub- 
lic lands  should  bona  fide  be  transferred  to  the  jurisdic- 
tion, taxing  power,  eminent  domain  and  sovereignty  of 
the  states  where  they  lie,  within  a  reasonable  period;  in 
order  that  a  new  state  might  be  erected  which  will  be 
equal  to  the  original  states  in  every  respect  whatever; 
and  that  the  status  of  the  public  lands  shall  not  be 
changed  without  the  consent  of  the  states,  where  they 
lie. 

NO  POWER   IN  CONGRESS  OR   PRESIDENT. 

From  the  foregoing,  it  becomes  clear  that  neither 
Congress  nor  the  President  have  any  powefJ<whatever, 
to  establish  a  permanent  tenure  of  the  public  lands.  All 
their  acts,  endeavoring  to  do  so,  are  simply  illegal  and 
void.  They  can  give  no  title  to  the  lumber,  which  they 
pretend  to  sell  from  the  forest  reserves,  or  to  the  mineral 
or  oil  sold  from  mines  or  wells  on  a  national  lease.  Such 
lumber,  or  mineral,  or  oil,  when  severed  from  the  soil, 
can  be  followed  by  the  state  and  be  recovered.  For  the 
United  States,  holding  but  a  partial  title  to  the  public 
lands,  can  convey  titles  only  for  such  uses  and  purposes 
as  are  granted  in  the  trust,  and  for  no  other  use  or  pur- 
pose whatever. 


39 

CONSERVATION  RESTS  WITH  STATES. 

The  power,  to  establish  a  permanent  tenure  of  the 
public  lands,  rests  with  those  states  alone,  which  contain 
public  lands.  Only  by  the  consent  of  these  states  can 
a  legally  valid  conservation  policy  be  established.  And 
this  consent  must  be  in  such  terms,  that  unequal  states 
will  not  be  created  thereby. 

CALIFORNIA     ADMITTED. 

Five  years  after  the  decision  was  rendered  in  Pollards 
Lessee  v.  Hagon  and  while  this  decision  was  fresh  and 
fully  understood,  California  was  admitted  to  the  Union, 
September  9th,  1850.  The  act  of  admission  contained 
the  usual  declarations,  which  are  taken  from  the  ordi- 
nance of  July  I3th,  1787. 

"The  state  of  California  shall  be  one  and  is  hereby 
declared  to  be  one  of  the  United  States  of  America 
and  admitted  into  the  Union  on  an  equal  footing 
with  the  original  states  in  all  respects  whatever. 
The  people  of  said  state,  shall  never  interfere  with 
the  primary  disposal  of  the  public  lands  within  its 
limits,  and  shall  pass  no  law  and  do  no  act,  where- 
by the  title  of  the  United  States  to  and  right  to  dis- 
pose of  the  same  shall  be  impaired  or  questioned. 
They  shall  never  lay  any  tax  or  assessment  of  any 
description  whatever  upon  the  public  domain  of 
the  United  States." 

To  assume  that  the  United  States  have  the  right  to 
appropriate  one  third  of  the  area  of  a  sovereign  state  is 

to  take  the  position  that  the  United  States  had  the  orig- 
inal right  to  retain  permanently  all  the  lands  of  the 
west.  It  did  have  such  power,  if  it  owns  the  public 
lands.    As  the  exercise  of  such  a  power  would  have  pre- 


40 

vented  the  formation  of  any  .new  states  whatever,  the 
mere  statement  of  such  a  proposition  demonstrates  its 
fallacy. 

A   POLITICAL   REVOLUTION    IS   BEING   FORCED. 

The  area  within  the  reserves  of  the  United  States  is 
greater  than  the  combined  territories  of  Great  Britain, 
Portugal,  Holland,  Belgium,  Denmark,  Switzerland  and 
Greece.  If  we  compare  the  states  within  these  vast  re- 
serves with  that  of  the  original  states,  which  were 
named  as  the  standard  of  comparison,  we  find  that  it  is 
neither  republican,  nor  free,  nor  sovereign,  nor  inde- 
pendent, nor  is  the  soil  being  faithfully  and  bona  fide 
disposed  of  to  erect  new  states,  and  for  no  other  use  or 
purpose  whatever.  On  the  contrary  we  find  that  the 
foundation  is  being  laid  for  a  type  of  government,  en- 
tirely new  within  the  United  States,  and  destructively 
hostile  to  our  constitutional  form  of  state  and  national 
government.  The  state  is  denied  all  control  of  the  soil. 
The  federal  courts  hold  jurisdiction;  the  police  power  is 
exercised  by  the  federal  troops ;  the  state  can  levy  no  real 
estate  tax,  even  though  the  right  of  taxation  is  so  fun- 
damental that  a  sovereign  state  can  not  exist  without  it. 
The  eminent  domain  of  the  state  is  denied.  This  great 
territory  is  adminstered  by  a  single  head  at  Washing- 
ton, and  the  civil  employees  are  entirely  loyal  to  the  cen- 
tral government  and  hostile  to  that  of  the  states. 

A    NEW   TYPE   OF    POLITICAL    STRUCTURE. 

A  student  of  history  can  see  at  a  glance  that  the  foun- 
dation is  being  laid  for  the  erection,  within  the  reserve 
states,  of  a  political  structure  which  is  at  least  that  of  de- 


41 

pendent  provinces,  with  a  centralized  government  that 
is  autocratic.     That  it  has  sharply  defined  boundaries. 

If  allowed  to  develop  and  become  strong,  this  new  third 
type  of  political  structure,  will  turn  on  the  state  and 
the  national  constitutions  and  destroy  both. 

PRESENT  CONTROL  FACILITATES  CREATION  OF  A  NEW  FORM 
OF  GOVERNMENT. 

The  present  form  of  control  of  the  public  lands  is 
peculiarly  adapted  to  laying  the  foundation  for  a  new 
political  structure.  The  administration  is  in  the  hands 
of  the  Department  of  the  Interior  and  of  the  Depart- 
of  Agriculture.  The  courts  are  not  disposed  to  interfere 
with  the  rules  and  regulations  which  these  departments 
may  make  for  the  administration  of  the  territory  under 
their  control.  Thus,  having  a  free  hand,  and  looking  to 
permanent  tenure,  and  promulgating  its  own  laws,  for 
these  rules  and  regulations  become  laws,  enacted  with- 
out a  parliament,  the  moment  the  public  lands  are  held 
in  permanent  tenure,  and  with  unfettered  control,  the 
Department  of  the  Interior  now,  under  the  plea  of  pro- 
tecting the  public  from  the  aggressions  of  corporations, 
is  itself  endeavoring  to  appropriate  the  trust  fund  of  the 
State  of  California. 

RIGHTS     OF     CALIFORNIA. 

As  the  only  right  of  the  United  States  in  the  public 
lands  is  the  power  to  dispose  of  them,  any  rentals  from 
oil  lands,  or  pasturage  in  forest  reserves,  or  sales  of  lum- 
ber belong  to  California  and  should  go  into  our  state 
treasury  to  reduce  taxation.  It  is  but  a  matter  of  time, 
when  this  practice  of  a  benevolent  despotism,  will  drop 
its  benevolence. 


42 

A  CRISIS  IN  OUR  HISTORY. 

We  have  reached  a  profound  crisis  in  the  history  of 
our  nation;  the  crisis  of  a  change  from  our  state  and 
■national  government,  to  that  of  a  national  government, 
without  states.  This  review  discloses  the  work  of  the 
men  who  laid  the  foundation  of  our  government  so 
wisely,  and  so  well  that  we  of  today,  in  wealth,  in  free- 
dom of  opportunity  and  in  general  welfare,  are  living 
in  the  golden  age  of  the  world's  history.  Now,  the 
burden  rests  on  the  reserve  states  to  preserve  and  to  pro- 
tect the  form  of  government  that  has  proved  to  be  so 
beneficient.  And  as  California  is  the  largest,  the  rich- 
est, and  the  most  populous  of  the  reserve  rights,  it  is 
eminently  fitting  that  she  take  a  position  of  leadership. 

CALIFORNIA  IN  VIRGINIA  POSITION. 

California  stands  today  in  substantially  the  same 
position,  regarding  her  territory  and  her  interests  in  the 
public  lands  of  this  state,  that  Virginia  stood  in,  when 
the  determined  effort  was  made  to  strip  her  of  her  lands, 
during  the  controversy  over  the  western  territory.  It  is 
the  duty  of  California  to  show  the  same  resolution  that 
Virginia  displayed,  to  the  end  that  our  state  territory 
may  be  transmitted  to  future  generations,  undiminshed 
in  extent;  that  our  state  may  stand,  not  relegated  to  a 
position  of  inferiority,  but  as  a  peer  among  equal  states, 
and  loyal  to  safeguard  the  foundations  of  our  nation. 

REVISION     OF     CONSERVATION. 

The  entire  subject  of  conservation  needs  a  funda- 
mental revision   to  bring  it  into   harmony  with   our 


43 

political  structures,  and  with  the  rights  of  the  reserve 
states.  It  is  not  necessary  to  destroy  the  United  States, 
in  order  to  establish  the  conservation  policy.  But  ob- 
viously this  is  a  state,  and  not  a  national  function.  The 
permanent  tenure  of  the  public  lands  by  the  United 
States  effects  a  revolution.  And  a  revolution  is  a  move, 
that  is  beyond  the  power  of  the  courts  to  consider. 

CITATIONS. 

The  citations  of  the  proceedings  of  the  constitutional 
convention  are  taken  from  Mr.  Madison's  report  of  the 
proceedings  of  that  convention. 

See  also:  Documentary  History  of  the  Constitu- 
tion of  the  United  States,  by  Dept.  of  State,  Washing- 
ton, Vol.  Ill  pps.  5,  7,  19,  64,  108,  451,  607,  6o8,  644, 
645,  646,  649,  65o,  651,  732,  783. 

The  deeds  cited  are  set  up  in  full  in  the  proceed- 
ings of  Congress  on  the  dates  given.  It  is  to  be  noted 
that  the  United  States  is  now  reaching  out  to  try  and 
regain  control  of  the  streams. 

NATION    HAS   DEEPER   FOUNDATION   THAN   CONSTITUTION. 

The  error  regarding  the  status  of  the  public  lands  has 
arisen  from  regarding  the  constitution  as  the  funda- 
mental document;  and  in  forgetting  that  our  nation  has 
a  foundation  deeper  and  broader  than  the  constitution; 
and  that  the  constitutional  convention  was  limited  and 
bound  by  the  contracts  that  Congress  had  entered  into. 


44 

CONTROL    OF    NAVIGABLE    STREAMS    BY    UNITED    STATES. 

The  control  of  navigable  streams,  by  the  United 
States,  with  its  vast  present  consequences,  takes 
its  rise  from  the  settlement,  by  which  the  United 
States  secured  control  of  the  western  public  lands.  The 
relations  of  the  states  and  of  the  nation  thereto  are  to  be 
understood  and  interpreted,  in  the  light  of  this  settle- 
ment and  its  expression  in  the  ordinance  of  1787,  de- 
claring that  the  navigable  waters  leading  into  the  Mis- 
sissippi and  the  St.  Lawrence,  shall  be  common  high- 
ways, and  forever  free,  as  well  to  the  inhabitants  of  the 
said  territory,  as  to  the  citizens  of  the  United  States,  and 
those  of  any  other  states  that  may  be  admitted  into  the 
confederacy,  without  any  tax,  impost,  or  duty  therefore. 

This  is  the  only  permanent  power  that  the  United 
States  has  in  streams.  Any  act  of  Congress,  or  of  the 
President,  attempting,  other  than  this,  to  fix  a  perma- 
nent control  of  streams,  or  of  power  sites,  in  the  United 
States,  and  to  gain  revenue  therefrom,  is  simply  void.  It 
it  beyond  any  power  resting  in  Congress.  A  reserve 
state  has  a  perfect  right  to  demand  an  accounting  from 
the  United  States  for  all  funds,  derived  from  the  public 
lands  or  streams  by  any  other  method  than  by  disposing 
of  them. 

GEO.  EDWARDS. 


NOTE: — In  order  that  the  reader,  who  is  not  a  lawyer,  may  pro- 
perly co-ordinate  the  information,  contained  in  this  brief,  attention 
is  called  to  the  fact  that  this  is  apparently  the  first  full  exposition  of 
the  fundamental  connection,  between  the  status  of  the  public  lands 
and  the  perfect  equality  of  the  newer  states,  with  the  original  states, 
which  has  been  such  a  vital  factor  in  the    rapid  development,  homo- 


45 

geneity,  and  strength  of  our  nation.  It  was  touched  upon,  in  a  few 
words,  by  the  U.  S.  Supreme  Court,  in  1845,  but  the  subject  is  sub- 
stantially without  literature;  and  this  connection  has  long  since  been 
forgotten  by  courts,  by  lav/yers,  and  by  the  general  public.  A  change 
of  this  status  of  the  public  lands  at  once  changes  the  form  of  our  gov- 
ernment. 

This,  also,  apparently  is  the  first  interpretation  of  the  brief  and 
obscure  clause,  in  our  national  constitution,  relating  to  the  public 
lands,  which  has  so  long  puzzled  the  courts,  and  which  reduced  them 
to  relying  on  the  single  word  "property"  in  determining  the  status  of 
the  public  lands. 


ACTION  BY  CALIFORNIA 


^      The  contract,  which  fixed  the  title  to  the  public 


lands,  consisted  in  the  tender  by  Congress;  a 
counter  tender  by  Virginia;  the  formal  acceptance 
by  Congress  of  the  tender  of  Virginia;  the  trans- 
fer of  the  consideration,  of  her  public  lands,  by 
the  deed  of  Virginia;  and  the  acceptance  of  the 
lands,  by  Congress,  in  behalf  of  the  United  States. 

This  contract  is  embraced  in  the  clause  of 
the  national  constitution  relating  to  the  public 
lands  which  specifically  expresses  this  contract 
and  contains  no  other  matter.  "Claims  of  the 
United  States"  means  the  right  of  the  United 
States  to  make  a  profit  by  disposing  of  the 
public  lands.  "Claims  of  any  particular  state" 
means  the  right  of  a  state,  containing  public 
lands,  to  have  those  lands  pass  to  its  eminent 
4omain  and  sovereignty  within  a  reasonable  period 
in  order  that  a  new  sta;e  may  be  erec;ed  which 
shall  be  equal  :n  every  respect  to  tie  originai 
states.  It  also  means  that  the  status  of  the  pub- 
lic lands  shall  not  be  changed  without  the  con- 
sent of  the  state  where  they  lie. 

As  soon  as  the  United  States  secured  control 
of  the  public  lands,  they  were  immediately  called 
the  lands  of  the  United  States  and  continued  to 
be  so  called  for  fifty  years.  The  great  debate  cf 
Webster  and  Hayne  arose  out  of  the  public  lands. 
V,  ebster  speaks  of  the  lands  as  belonging  to  the 
United  States,  as  a  matter  of  course-  But  a  few 
years  later  the  United  States  Supreme  Court,  in 
Pollard's  Lesser  v.  Hagon,  decided  that  the  public 
lands  are  held  by  the  United  States  for  temporary 
purposes  only,  and  in  trust  for  the  states  where 
they  lie. 

This  correct  interpretation  was  followed  by  a 
large  body  of  decisions,  but  the  courts  at  length 
forgot  what  the  nature  of  the  title  of  the  public 


lands  is,  and  slowly  drifted  back  to  the  erroneous 
position  which  was  taken  before  this  great  lead- 
ing case  was  decided.  The  courts  have  been  wan- 
dering in  confusion  unable  to  reconcile  existing 
facts  with  the  false  theory  that  the  United  States 
owns  the  public  lands. 

This  great  contract  with  Virginia  has  been  as 
potent  in  shaping  our  nation  as  the  constitution 
itself.  For,  had  subordinate  states  been  erected, 
or  had  the  United  States  retained  the  public 
lands  permanently,  a  great  part  of  our  area 
would  still  be  a  wilderness  dominated  by  a  cen- 
tral government,  which  would  now  be  strongly 
or  completely  monarchical  in  character.  This 
monarchical  tejidency  is  the  fundamental  signfi- 
cance  of  the  present  movement. 

While  Congress  and  the  courts  forgot,  in  time, 
that  the  public  lands  are  a  trust  fund  for  the 
public  land  states  this  great  historic  fact  has 
held  the  nation  in  a  grip  of  iron,  and  moulded 
our  country  into  a  body  of  equal  states,  bound 
together  by  a  federal  government. 

So  long  as  Congress,  in  fact,  treated  the  public 
lands  in  accordance  with  the  basic  trust,  under 
which  they  are  held,  it  made  no  practical  differ- 
ence if  the  national  laws  did  speak  of  the  lands 
as  belonging  to  the  United  States.  But  now, 
when  the  application  of  the  false  theory,  that 
ownership  lies  in  the  United  States,  is  carried 
to  its  logical  conclusion,  that  the  United  States 
may  do  what  it  pleases  with  the  public  lands; 
and  the  holding  in  perpetuity  by  the  United 
States  is  the  erection  of  dependent  provinces 
within  the  several  reserve  states,  involving  the 
ultimate  destruction  of  our  state  and  national 
government,  it  becomes  imperative  that  the  na- 


i 


ture  of  the  title  of  the  public  lands  be  re-exam- 
ined, to  its  very  foundation. 

The  present  controversy,  regarding  the  status  of 
the  public  lands,  is  precisely  the  same  controversy 
that  nearly  destroyed  the  nation  under  the  Arti- 
cles of  Confederation.  Now,  as  then,  the  future 
of  the  nation  and  its  political  structure,  depends 
on  the  solution. 

A  year  ago  most  radical  legislatidn  was  in  the 
air.  Alaska  was  regarded  as  a  province,  subject 
to  exploitation  by  the  United  States.  But  this 
movement  has  been  halted.  Congress,  the  execu- 
tive, and  the  United  States  Supreme  Court  have 
a  better  understanding  of  the  matter.  The  Su- 
preme Court  has  held  that  Alaska  is  a  territory; 
and  Congress  has  been  engaged  with  a  law  or- 
ganizing a  territorial  government  for  Alaska. 

Under  this  favorable  term  it  is  time  for  Cali- 
fornia to  assert  herself.  She  must  not,  by  seem- 
ing acquiescence,  waive  any  of  her  rights.  She 
already  has  secured  substantial  control  of  the 
streams;  and  the  title  to  both  streams  and  land 
rest  on  the  same  ultimate  title,  or  the  Virginia 
contract.  The  control  of  streams  flowing  from 
one  state  to  another,  must  not  be  in  an  overland, 
but  in  control  of  law  interpreted  in  harmony  with 
the  basic  titles. 

If  California,  by  neglect,  allows  the  Federal 
department  of  forestry  to  become  thoroughly  in- 
trenched, it  will  in  time  become  a  powerful  or- 
ganization, existing  in  and  for  itself.  Its  position 
will  become  invincible.  It  now  aims  to  attain 
that  end. 


On  the  other  hand,  there  is  a  great  area  in 
California,  valuable  for  no  other  purpose  than 
forestry.  Its  transfer  to  individuals  will  result 
in  wanton  destruction  and  waste.  If  transferred, 
at  once  to  California,  it  will  become  the  spoils 
of  politicians. 

This  difficulty  can  be  met  by  having  a  new  trust 
created,  placing  the  forest  land  in  the  hands  of 
a  small  board  of  trustees,  holding  for  long  terms. 
They  can  be  nominated  by  the  Governor,  ap- 
proved by  the  President,  and  confirmed  by  our 
state  legislature.  The  Governor  and  the  Secre- 
tary of  the  Interior  can  be,  ex-officio,  members  of 
this  board.  For  it  is  unquestionable,  that  the 
United  States  is  entitled  to  a  limited  interest  in 
these  lands.  The  great  responsibility  should  in- 
sure the  same  careful  administration  that  is  now 
exercised  by  the  Regents  of  the  University  of 
California,  and  the  net  revenues,  excepting  the 
small  interest  of  the  United  States,  will  pass  into 
our  state  treasury  and  into  the  impoverished 
treasuries  of  the  counties  where  they  lie. 

Therefore,  with  loyalty  to  our  country  as  a 
whole,  to  preserve  the  rights  of  California,  and 
to  lay  the  foundation  for  negotiation,  it  seems 
that  our  legislature  should  adopt  resolutions  re- 
questing the  national  authorities  to  sell  no  more 
Timber,  in  the  reserves,  without  the  consent  of 
California,  and  to  render  an  accounting  for  all 
funds  derived  from  the  public  lands  by  any  other 
means  than  disposing  of  them. 

GEORGE    EDWARDS. 


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